Nikki Gershbain for The Globe and Mail Writes About Being Out in Law

“The Court of Appeal had declared the existing definition of marriage unconstitutional, effective immediately. I began to cry. Effective immediately, I was equal.”

As I find myself on the eve of Toronto’s World Pride day this weekend, making plans to march in the parade with my partner, my son and step-daughter and their dads, I cannot help but reflect on the fact that it has been almost a quarter of a century since I came out.

In 1989 I was 19 years old and had recently moved to Toronto from the middle-class, Jewish suburb I grew up in in Winnipeg. Leaving my hometown was liberating, and when I enrolled at York University it felt natural to fall in with a lefty crowd.

It was an exhilarating intellectual and political awakening. I was righteous and politically correct and started spelling women with a “y.” I learned that sexuality was fluid, and by 1990 I was dating a woman and identifying as bisexual.

In 1991 I went to my first Pride – in those days it was a March, not a Parade. I danced down Yonge Street, thrilled and indignant as straight people gawked and pointed and took photos of us as if we were animals in a zoo. You have to remember that this was a completely different time. There were no gay rights. Sexuality was not covered in any of the country’s Human Rights Codes. There were no spousal benefits or any right to adopt children.

I remember one evening I was at a bar on Queen Street that hosted a weekly lesbian night called Lola’s. The lesbian uniform in the circles I ran in leaned toward the androgynous. In an awkward attempt to fit in, I wore purple lace-up Doc Martens, baggy boy Levi’s and a white T-shirt. I overheard someone ask: “So who’s the butch with the long hair?”

By 1992, I was happily out to friends, but full of fear and shame at home, where I still lived. My parents suspected I had a girlfriend. My mother fell into a deep depression and barely spoke to me. When I finally could not contain the truth any longer I told my father I was seeing a woman. He of course already knew, explaining: “When you look like a duck…” For one terrifying moment I was convinced he was going to say “dyke.” A few days later I moved in with my girlfriend. Not the first girlfriend, mind you, the second one – the one who made me realize that being gay didn’t mean I had to wear plaid shirts and lumber jackets. I bought make-up and wore dresses and embraced Lipstick Lesbianism.

In 1993, my mother started taking Paxil and I went off to graduate school in New York City on a Fulbright Scholarship. My girlfriend and I lived in Greenwich Village, around the corner from Stonewall. My mom came to visit us and she was happy, and so was I.

I came home for the summer, just in time for Bill 167, which would have extended spousal benefits and the right to adopt to gay couples. Bowing to intense pressure, the Bob Rae government removed adoption and put the Bill to a free vote in the legislature.

I was at Queen’s Park the day every Tory MPP and all but three Liberals and 12 New Democrats voted – with their consciences, ironically – to kill the bill. The gallery erupted and Reverend Brent Hawkes stood and yelled “Shame! Shame!” before he and many others were forcibly removed by guards wearing rubber gloves. (Reverend Hawkes would go on years later to officiate at Jack Layton’s state funeral on national television. On Sunday he will be leading the World Pride parade as the Grand Marshall.)

That year for Pride we didn’t march on Church Street or Bloor Street or Yonge Street. We marched around the legislature and chanted “We’re here, we’re queer, get used to it!” In the fall, I was back at grad school and I began to notice that more and more gay advocacy was taking place in the courts, and that gay marriage had entered the zeitgeist.

In 1996, I wrote an essay on same-sex marriage that was published in a magazine. I argued that marriage was a patriarchal institution. I wrote that the fight for gay marriage was part of a neo-conservative agenda, and that assimilation into the mainstream would be the death knell of the sexual liberation that had been so hard fought. (Years later I learned that the government cited my article as evidence that not all gay people supported same-sex marriage, an outcome that was never my intention).

That year my mother had a stroke and became paralyzed on one side of her body and was unable to speak. I moved back to Toronto to care for her. I showered her and fed her and played cassette tapes in her hospital room. We slow danced to her favorite songs, like Helen Ready’s “I Am Woman.” I wrote the LSAT.
I started law school at the University of Toronto in 1997 – two years after Supreme Court ruled, in favour of the landmark decision Egan v. Canada, that sexual orientation is grounds for prohibited discrimination under the Charter of Rights and Freedoms. I studied Egan in my constitutional law class and learned that in Canada we see the constitution as “a living tree” that evolves over time. By reading the words “sexual orientation” into the Charter, the Court established that freedom from discrimination based on sexual orientation was a fundamental right. In law school I was one of a handful of openly gay students.

My friends and I planned panel discussions, inviting every leading gay member of the Toronto legal profession we had ever heard of to speak at the school. In my second year of law school, the Supreme Court decided the landmark case M v. H. By declaring that the definition of “spouse” could not be limited to one man and one woman, the Court opened the door to gay marriage, a prospect that horrified many. Law school was softening the edges of my politics. Even though I still personally rejected the idea of getting married, I began to realize that supporting gay marriage was not selling out, that the point was not assimilation, but equality.

After law school, I went on to practice at a boutique firm called Epstein Cole LLP. It was a very exciting time to be at the firm. Martha McCarthy, who had won M v. H, was a partner. She and Joanna Radbord were counsel for eight litigants in a gay-marriage case known as Halpern. In a 129-page decision released in July of 2002, the province’s Superior Court ruled that prohibiting gay couples from marrying violated the Charter. The Federal government appealed to the Ontario Court of Appeal.

Unfortunately, in an act of extreme deference, the Court gave the province an unprecedented two years to provide same-sex couples with the same rights as heterosexual couples. My partner, not the second one, the third one, and I were flying back from a holiday overseas when the Court of Appeal released its decision in July of 2003. These were the days before Twitter, or even Blackberries for that matter, and the flight attendants ran out of Canadian newspapers just before they got to us. We found ourselves reading surreptitiously over the shoulder of a passenger in front of us. The headline told us all we needed to know: the Court of Appeal had declared the existing definition of marriage to be unconstitutional, effective immediately. I began to cry. Effective immediately, I was equal.

At that moment I no longer cared that marriage was a patriarchal institution, or that there were more gay people who wanted to register at The Bay than change the world.

It no longer mattered that I didn’t want to get married – because now I could.

The next year the Supreme Court went on to legalize gay marriage. In the decade since the gay-marriage case was fought and won, there has been a sea change in how we think about LGBT people, as there has been a sea change in my own life. In 2003 my partner and I bought a house, in 2005 we had a baby, and in 2008, sadly, we separated. I fell in love with another woman, who had a daughter. Last year we bought a home and officially blended our families. Our children are in Grades 1 and 3. They love all of their moms, and my parents are thrilled to be grandparents – to not one but now two kids.

I continue to be an advocate, although today it takes different forms. This year I helped plan a Pride picnic at our kids’ elementary school. I made rainbow Jello cups and we hung a rainbow flag in the schoolyard. The principal and teachers and dozens of families – straight and gay – sat together on blankets celebrating World Pride as a community.

It felt intensely radical and utterly mainstream all at the same time.

Today, my girlfriend and I dream about getting married in the backyard of our home. When we do, I will dance with my mother and my father and my partner and our kids under a cherry blossom tree in our garden, which is living and breathing. Just like our Constitution.